Lawsuit Challenges Highway Widening Through Ancient California Redwoods, Unnecessary Caltrans Project Would Destroy Iconic Trees in Richardson Grove

EUREKA, Calif.— Environmental groups and local residents today sued the California Department of Transportation (Caltrans) for approving a highway-widening project that would damage or destroy 1,000- to 2,000-year-old redwood trees in California’s iconic Richardson Grove State Park, along Highway 101 in Humboldt County.

Today’s lawsuit, filed in Humboldt County Superior Court, challenges the transportation agency’s latest approval of the controversial project. Three previous legal challenges blocked construction and forced Caltrans to rescind all project approvals in 2014. Caltrans quietly reapproved the project last month, purportedly to improve highway access for oversized commercial trucks.

“Caltrans keeps pushing this nonsensical project that would do terrible damage to ancient redwoods in our state park, with no benefits to the community,” said Aruna Prabhala, an attorney at the Center for Biological Diversity. “There’s just no compelling traffic or safety reason to destroy these beautiful trees. The changes Caltrans claims it’s made to the project won’t protect more than 100 giant redwoods from being damaged or killed.”

The “Richardson Grove Operational Improvement Project” would cut into and pave over the roots of more than 100 of Richardson Grove’s ancient redwoods, including trees up to 2,000 years old, 18 feet in diameter and 300 feet tall. Caltrans has pursued this project solely to benefit passage for oversized commercial trucks and continues to rely on inadequate environmental review.

“EPIC is disappointed that Caltrans has continued to push forward, ignoring previous court warnings about the need to honestly evaluate the effects of its road widening on old-growth redwoods,” said Tom Wheeler, executive director and staff attorney at the Environmental Protection Information Center. “Caltrans’ road widening shows no respect for sacred parkland and irreplaceable ancient trees.”

"Caltrans does not seem to get that we the people, by law, have a place at the table when important decisions are made affecting our environment, and in the case of this iconic and beloved grove of ancient redwoods, just how important it is to protect irreplaceable magnificent old trees when decisions made are of such consequences,” said Patty Clary, executive director of Californians for Alternatives to Toxics.

Today’s suit was filed by the Center for Biological Diversity; the Environmental Protection Information Center (EPIC); Californians for Alternatives to Toxics; Friends of Del Norte; and longtime local residents Bess Bair, Trisha Lee Lotus, Jeffrey Hedin and David Spreen. The suit challenges Caltrans’ violations of the California Environmental Quality Act, and inadequate evaluation of environmental impacts, a misleading conclusion that the project would have no significant impact on the environment, and a flawed determination that none of the proposed highway alterations would threaten the stability of any old-growth redwoods.

Background
Richardson Grove State Park, where tourists often first encounter large redwoods when heading north on Highway 101, is home to one of the last protected stands of accessible old-growth redwood trees in the world and is a jewel of the state park system. The park also contains essential habitat for threatened and endangered species such as the northern spotted owl, and its creeks support runs of imperiled salmon and steelhead trout.

Caltrans first proposed the project in 2007, claiming the highway-widening is needed to accommodate large-truck travel. However, Caltrans acknowledges that Highway 101 through Richardson Grove is already designated for larger trucks and does not have significant safety problems. The agency cannot demonstrate that the project is necessary for safety or would benefit the local economy.

There has been substantial local opposition to the project, led by the Save Richardson Grove Coalition, a diverse group of community members including economists, business owners, scientists and Northern California tribes with longstanding ties to the grove. In 2012 a federal court stopped the project, citing numerous errors in Caltrans’ mapping and measurement of affected old-growth redwoods and stating that the agency had been “arbitrary and capricious” in its use of what the court called “faulty data.” In 2014 a California Court of Appeal ordered Caltrans to reevaluate the environmental impacts of the project under state law, finding that it had failed to fully assess impacts on ancient redwoods or provide measures to reduce potentially severe harm to the trees.

Caltrans re-approved the project again and now claims it made changes to better protect old-growth redwood trees, such as impacting fewer trees, less excavation, and less depth of surface pavement.

However, the “changes” to the project do not markedly differ from what the courts previously rejected as inadequate, and Caltrans has not answered the questions and concerns raised about structural damage to redwoods from cutting into their roots.

The attorneys for the plaintiffs in this suit are Philip Gregory of Cotchett, Pitre & McCarthy LLP; Stuart Gross of Gross & Klein LLP; and Sharon Duggan, a staff attorney with EPIC and a long-time expert on environmental law.

A copy of the Complaint is included herewith.

Marina Family Sues PG&E for Contamination of the Their Home - Toxicity Levels Many Thousand Times Higher Than Safe

SAN FRANCISCO, May 9, 2017 – Dalene Bramer and Joe Gabany, who live with their four year old twins in a home in the footprint of a former “manufactured gas plant” or “MGP” located in the Northeast end of the Marina neighborhood, filed a Complaint today, alleging that PG&E is responsible for the contamination of their home with massive levels of lead and cancer-causing polyaromatic hydrocarbons or “PAHs.” 

PG&E, less than a week ago, held a public meeting for Marina residents in which it claimed: “We are seeking to win back the trust of the community. . . Our work to date supports that we do not expect health impacts in the community as a result of the former MGPs.”

However, as alleged in the Complaint, lead levels from MGP wastes in the soil of Dalene and Joe’s home greatly exceed hazardous waste levels and are more than 55 times higher than the level which is known to cause neurological impairment to children. PG&E vigorously sought to prevent the testing for lead in the soils of Dalene and Joe’s home, and told their neighbors, who also have young children, that they’d have to sue PG&E to get it to test for lead.

In addition, PAH levels in the soils are more that 62,800 times than that established by the EPA as increasing a person’s risk of cancer. In other words, long-term exposure to this level of  toxins increases a person’s risk of developing cancer by over 62,800 times. Studies have shown that for people growing-up near PAH contaminated soils, most of this increased risk occurs as a result of exposure during their childhood. 

“The levels of lead and PAHs in our yard and under our home is deeply disturbing,” Dalene Bramer said. “PG&E told me that the MGP wastes did not contain lead and that it was safe for our family to use the backyard.  I did not believe them and only allowed my twins to play in the backyard on two occasions. As soon as I saw the dust flying around them, that was it, no more playing outside. And it’s a good thing, because when we received the test results, it showed that lead levels and PAHs were at the level of hazardous toxic waste.  It’s time for PG&E to own their toxic waste site and do the right thing here.”

Dalene’s husband, Joe Gabany, echoed that sentiment, “We’ve tried working with PG&E for four years. Their strategy is clearly to wear us down so that we accept something that saves them money. We’re not going to do it. This is their contamination, and they need to clean it up.”   

Dalene and Joe’s attorney, Stuart G. Gross of Gross & Klein LLP, described the situation this way, “PG&E’s attitude appears to be that with its size, resources, and influence, it calls the shots, and homeowners need to just accept what it’s offering. That was its plan. However, the law does not give it that leeway.” Gross continued, “It’s unfortunate that Dalene and Joe needed to go to court to force PG&E to meet its obligations. Luckily we still have a system of justice in which a young family can go toe-to-toe with a multi-billion dollar utility.”      

The lawsuit is titled, Bramer, et al. v. PG&E Corporation, et al, No. 17-2678, and alleges claims under Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and various California state laws. It was filed today in the San Francisco Courthouse of the District Court of the Northern District of California.

 A copy of the Complaint is included herewith.

Stuart Gross Named a 2017 Super Lawyer in Business Litigation by Thompson Reuters

SAN FRANCISCO, February 1, 2017: Thompson Reuters has named Gross & Klein LLP partner Stuart Gross to its list of Super Lawyers in Northern California in the area of Business Litigation. According to Thompson Reuters, the designation of Super Lawyer is given only to attorneys “who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.” Thompson Reuters has named Stuart a Super Lawyer every year since 2013, and designated him a Rising Star each of the previous three years

See Stuart's listing here.

Stuart Gross Quoted in Article on Investor-State Dispute Settlement (“ISDS”)

NEW YORK, August 30, 2016:  Gross & Klein LLP partner Stuart Gross is quoted by Pulitzer Prize winning journalist Chris Hamby, in his article titled “The Billion Dollar Ultimatum” about the use of investor state dispute settlement (“ISDS”) processes by transnational companies to override environmental and socioeconomic laws in host states. The article examines, in particular, threats to initiate ISDS processes, under various investment treaties and Indonesia’s international investment law, used by transnational mining companies to coerce the government of Indonesia into abandoning enforcement of a ban on open-pit mining in protected forests. In 2003, Stuart published an article tilted “Inordinate Chill: BITs, MITs, and Host-State Regulatory Freedom – An Indonesian Case Study,” in the Michigan Journal of International Law, which examined the foregoing events in Indonesia and the legal context that made them possible. Stuart’s article is extensively cited in books and articles concerning international investment law and ISDS.

“The Billion Dollar Ultimatum” by Chris Hamby can be found here.

“Inordinate Chill: BITs, MITs, and Host-State Regulatory Freedom – An Indonesian Case Study" by Stuart Gross can be found here.

Benjamin Klein to Participate in Panel at the Aircraft Owners and Pilots Association Bremerton, WA Fly-In on the FAA’s New Compliance Philosophy

On August 20, 2016, Ben Klein will participate in a panel discussion at the AOPA Bremerton Fly-In entitled, The FAA’s New Compliance Philosophy: What Does It Mean for You?  The panel, which is being facilitated by AOPA Pilot Protection Services, will address the Federal Aviation Administration’s efforts to transition away from using enforcement actions to correct unintentional deviations toward a culture focused on preventing future occurrences through training, education, and national airspace system improvements.  Ben will be joined on the panel by Jared Allen of AOPA, Jeffrey Smith, Manager of the FAA’s Training and Certification Branch, and David May, Manager of Seattle’s Flight Standards District Office.  More information can be found here.

Benjamin Klein to Moderate Panel on FAA Part 16 Proceedings at International Aviation Transportation Safety Bar Association

On April 29, 2016, Benjamin Klein will moderate a panel, to include private practitioners and FAA attorneys, on the Dos and Don’ts of FAA Part 16 Proceedings.  The panel will also discuss current high profile Part 16 proceedings, including those involving East Hampton Airport and Santa Monica Airport. 

For more information visit https://iatsba.org/product/2016-iatsba-spring-conference/

Ninth Circuit Affirms Order Striking Down Discriminatory California Commercial Fishing Laws

SAN FRANCISCO, September 18, 2015 – The United States Court of Appeals for the Ninth Circuit issued an Opinion today affirming a decision from 2013 by Judge Donna Ryu of the Northern District California that struck down four California statutes for unconstitutionally discriminating against nonresident commercial fishermen.

At issue were four statutes enacted by the California Legislature in the 1980s and 1990s: Cal. Fish & Game Code §§ 7852, 7881, 8280.6, and 8550.5. The statutes set the fees charged to nonresidents several times higher than those charged to residents for: commercial fishing licenses (§ 7852); commercial boat registrations (§ 7881); Dungeness Crab vessel permits (§ 8280.6); and herring gill net permits (§ 8550.5).

The table below shows the differences in fees charged in 2013, the last year the discriminatory fees were charged before the District Court’s order:


                                                                                      Resident                               Nonresident
               Commercial Fishing License                        $133.39                                $395.50
               Commercial Boat Registration                     $347.50                                $1,028.25
               Dungeness Crab Vessel Permit                   $280.00                               $551.75
               Herring Gill Net Permit                                 $368.25                               $1,368.75


The discriminatory fees hit nonresident herring fishermen hardest. Most herring fishermen have three herring permits and own their own boats. Thus, in the 2013 herring season, most nonresident fishermen paid a total of $5,390.75 in fees, while their resident competitors paid $1,545.78, a difference of almost $4,000.

The Ninth Circuit affirmed the District Court’s finding that the four statutes violated the Privileges and Immunities Clause of the United States Constitution. The Ninth Circuit agreed that the laws implicated the Clause’s guarantee of the right to earn a living in every State on terms of substantial equality with the residents of the state, and that the State of California had not met its burden to show that the discrimination was justified.

Specifically, in a clear articulation of the standard applicable to cases involving this type of discrimination, the Appeals Court held:

"[A] State may justify a differential fee by showing either that it is closely related to the costs of addressing a burden non-residents uniquely impose or that it approximates the amount in 'taxes which only residents pay' towards the relevant State expenditures from which non-residents also benefit."

The Ninth Circuit agreed that California had failed to meet their burden to justify the challenged discrimination in either of these ways.

When first contacted regarding the decision, class member, long-time commercial herring fisherman, president of the San Francisco Herring Association, and resident of Bellingham, Washington, Matt Ryan stated, “Hot dog!” Matt Ryan and other nonresident commercial herring fishermen have been trying to get California’s discriminatory fees corrected for over twenty years. “This has been a long time coming,” Mr. Ryan continued. “When these fees were first put in place, we told them that they were wrong, but nothing was done about them. It feels good to finally get this fixed.”

Lead attorney for the class of nonresident fishermen on whose behalf the case was brought in May of 2011, Stuart G. Gross or Gross Law, P.C., echoed Mr. Ryan’s sentiments, “nonresident fishermen have been waiting a long time for this result, and we are happy to have helped them achieve it.” Mr. Gross continued, “The import of this decision goes significantly beyond the four statutes directly affected by it. The decision affirms the fundamental right of all Americans to earn a living in any State of this nation free of unjustified discrimination in favor of that State’s residents. This case was fundamentally about fairness, and we’re gratified by the result.”

The lawsuit is titled, Marilley v. Bonham, its case number at the Ninth Circuit is 13-17358, and at the Northern District of California is No. 11-2418-DMR.

The Ninth Circuit's opinion is available here: Marilley v Bonham-Ninth Cir. Opinion.pdf

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Federal Court Has Jurisdiction Over Paskenta Band of Nomlaki Indians Lawsuit Against Former Tribal Officials, Senior Employees For Defrauding Tribe of Millions

(CORNING, Calif. – Aug. 14, 2015) A federal judge ruled today that the U.S. District Court, Eastern District of California, has subject matter jurisdiction over a lawsuit filed by the Paskenta Band of Nomlaki Indians under the federal Racketeer Influence and Corruption (RICO) Act and other state and federal laws against former Tribal officials and senior employees accused of defrauding the Tribe of tens of millions of dollars. The court rejected claims by defendants that the Tribe’s lawsuit is an intra-tribal dispute and therefore the Court had no jurisdiction to hear any of the Tribe’s claims.

“We are gratified by the Court’s decision. The Tribe brought this action to hold responsible a group of individuals who, for well over a decade, conspired to steal tens of millions of dollars from the Tribe,” the Paskenta Band of the Nomlaki Indians Tribal Council said in a statement. “That stolen money, much of which the Ringleaders used to pay for a lifestyle of private jet travel, sports cars, and luxury homes, could and should have been used to improve the welfare of the Tribe’s members. The Court’s decision today makes clear that these individuals and others who benefited from their scheme will be held responsible for the harms they caused.” 

The Tribe’s co-lead counsel Stuart Gross, of Gross Law P.C., added, “With a single sentence, the Court rejected the argument that this case is an intra-tribal dispute over tribal membership and governance over which the Court lacks jurisdiction. The decision sends a clear message that tribal officials who steal from the tribes they are supposed to serve can and will be held responsible for their actions in federal courts. The defendants misleadingly defended their conspiracy to defraud the Tribe through arguing the federal courts had no power to review actions that violate federal and Tribal law. The opposite is true; and we are pleased the Court rejected defendants' attempt to avoid liability on this basis.”

In another significant win for the Plaintiffs, U.S. District Judge Garland E. Burrell, Jr., also denied the defendants’ attempt to dismiss the Tribe’s restitution claims, including those filed against Abettor Defendants Umpqua Bank and Umpqua Holdings Corp., Cornerstone Community Bank and Cornerstone Community Bancorp, Associated Pension Consultants and Patriot Gold & Silver Exchange, as well as others that allegedly assisted in the theft of Tribal funds. In addition, the Court provided the Tribe with an opportunity to amend its claims against the Abettor Defendants.

“The Court’s decision affirms the Tribe’s ability to pursue claims against all of the twenty-plus named defendants. This includes those who alleged to have directly participated in the RICO conspiracy, as well as those who assisted and benefited from it. To the extent the Court has asked the Tribe to amplify its allegations concerning some of those claims, we intend to do so,” said the Tribe’s co-counsel Andrew M. Purdy of the Joseph Saveri Law Firm, Inc.  

In March 2015, the Tribe filed the lawsuit in federal court charging its former treasurer and three former senior officials with defrauding the Tribe of tens of millions of dollars in Tribal moneys. . The 200-plus page complaint alleges in detail that these four individuals used vote-rigging, bribery, and extortion to take control of the Tribe and its principal non-casino business entity during this far-reaching, decade-long scheme.

Also named in the lawsuit are individuals, including several family members of the four defendants, and businesses that participated in the conspiracy and/or aided and abetted the illegal activity. These include Umpqua Bank, Umpqua Holdings Corp., Cornerstone Community Bank, and Cornerstone Community Bancorp—all of which allegedly assisted the Ringleaders in their theft of Tribal moneys on deposit—as well as Garth Moore Insurance & Financial Services, Associated Pension Consultants, Inc., Haness & Associates, LLC, and their principals, who are alleged to have facilitated conversion of millions of dollars through unauthorized retirement compensation schemes. Additionally, Patriot Gold & Silver Exchange and its owner, Norman R. Ryan, are alleged to have substantially assisted defendant John Crosby in converting approximately $160,000 of the Tribe’s money through purchases of gold.

For more information about the lawsuit, Paskenta Band of Nomlaki Indians and Paskenta Enterprises Corporation v. Ines Crosby, John Crosby, Leslie Lohse, Larry Lohse et. al, contact Stuart G. Gross, of Gross Law P.C., at (415) 671-4628, or Andrew M. Purdy of the Joseph Saveri Law Firm, Inc., at (415) 500-6800.

A copy of the Order can be found here: [101] PBNI v. Crosby - Order re MTDs.pdf

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Court Rejects PG&E’s Effort To Avoid Claims For Massive Contamination Of SF Bay and SF Neighborhoods

SAN FRANCISCO, February 26, 2015 – Judge William Orrick of Northern District of California federal court in San Francisco Bay, today, rejected efforts by PG&E to avoid claims arising out of massive contamination of the Marina and Fisherman’s Wharf neighborhoods and nearby waters of the San Francisco Bay. As alleged in the Complaint, PG&E has known about the contamination since at least the 1970’s; however, it not only has failed to clean up the contamination, it has vigorously resisted conducting the testing necessary to determine its full extent.

PG&E argued that claims brought by the San Francisco Herring Association, an association of commercial herring fishermen, and a Marina property owner under the federal environmental laws—the Clean Water Act and Resource Conservation and Recovery Act—failed as a matter of law and that the plaintiffs lacked the standing to pursue the claims. The Court rejected each of several arguments raised by PG&E, including: that contamination left behind 100 years ago could not be the basis for a Clean Water Act claim now; that contamination which migrates to navigable water through groundwater could not form the basis for a Clean Water Act claim; and that PG&E could avoid claims under the Resource Conservation and Recovery Act on the ground that a regulatory agency had approved of a remediation plan alleged to be inadequate.

The contamination at issue is the result of PG&E’s operation in the late 1800’s and early 1900’s of what are known as “manufactured gas plants” or “MGPs” at two locations in the present day Marina neighborhood and at one location in the present day Fisherman’s Wharf neighborhood. MGPs were refineries that turned coal, oil, and combinations thereof into gas that was pumped to residences in their vicinity. The process created large amounts of highly toxic waste, including waste that contained large concentrations of chemicals known as poly-aromatic hydrocarbons or “PAHs.” PAHs are carcinogens and are highly toxic to marine life, especially herring in their early life stages. They are also extremely persistent, able to remain highly toxic for hundreds of years after being released into the environment.

“This case seeks something very simple but very important: identification and cleanup of the toxic contamination left behind by PG&E,” said Stuart G. Gross of Gross Law, P.C., counsel for the plaintiffs in the lawsuit. “We are gratified that the Court agreed that the plaintiffs’ claims have merit. We look forward to pursuing their successful resolution.”

The lawsuit is titled, San Francisco Herring Association v. PG&E, No. 14-4393 (N.D. Cal.).

A copy of the Order is available here: [44] SFHA v. PGE Order Denying MTD.pdf

A copy of the Complaint is available here: San Francisco Herring Association v. PG&E, No. 14-4393 (N.D.Cal.)

For additional press please click below:
Law360
SFGate
National Fisherman

Caltrans Agrees to Reevaluate Impacts of Del Norte Highway Project on Threatened Salmon

CRESCENT CITY, July 11, 2014— In response to a lawsuit filed by Gross Law and co-counsel on behalf of conservation groups, Caltrans has agreed to reassess impacts of a controversial highway-widening project in Del Norte County on protected salmon and their habitat along the wild and scenic Smith River. A settlement agreement will keep in place a court-ordered halt of construction work until Caltrans completes consultation with the National Marine Fisheries Service under the Endangered Species Act and Magnuson-Stevens Fisheries Conservation Act.

Caltrans is attempting to widen narrow sections of highways 197 and 199 along the Smith River in California’s remote Del Norte County to provide access for oversized trucks. Construction would increase erosion and delivery of sediment into the Middle Fork Smith River, harming habitat for threatened coho salmon runs that already face a high risk of extinction. The project would undermine public safety by increasing heavy and oversized truck use on narrow roadways along the Smith River Canyon; it would hurt tourism and local residents.

 Gross Law, with co-counsel, filed lawsuits in federal and state court in 2013, on behalf of Friends of Del Norte, the Center for Biological Diversity, the Environmental Protection Information Center, and WW II combat fighter pilot veteran and local resident Ted Souza, challenging the review of the project’s environmental impacts by Caltrans and the National Marine Fisheries Service (“NMFS”). Caltrans had slated major earthmoving and construction work to begin this month.

Judge James Donato of Northern District Court issued a preliminary injunction in early May stopping Caltrans from doing any further work, citing substantial violations of the Endangered Species Act, a “haphazard” consultation process with the federal fisheries agency, and the potential for irreparable harm to the Smith River and salmon habitat. The court characterized both agencies’ biological assessment documents for the project as “contradictory and unclear.”

As part of the new settlement, Caltrans has now reinitiated consultation with the National Marine Fisheries Service to properly analyze whether the project would jeopardize threatened coho salmon and their critical habitat in the Smith River or adversely affect the essential fish habitat of all salmon species in the river. The conservation groups retain the right to challenge any further agency decisions or environmental documents for the project.

Stipulation and Order for a Dismissal without Prejudice - Souza v. Caltrans, No. 13-4407-JD (N.D. Cal).pdf

Order Granting Motion for Preliminary Injunction - Souza v. Caltrans, No. 13-4407-JD (N.D. Cal.).pdf

First Amended Complaint - Souza v. Caltrans, No. 13-4407-JD (N.D. Cal.).pdf

First Amended Verified Petition - Friends of Del Norte v. Caltrans, No. CVPT 13-1156 (Sup. Crt. Del Norte. Cnty.).pdf

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